United States District Court, D. New Jersey
H. RODRIGUEZ UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's motion to
dismiss the Amended Complaint under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim. The Court
has reviewed the submissions and decides the matter based on
the briefs pursuant to Fed.R.Civ.P. 78(b). For the reasons
stated here, Defendant's motion will be denied.
Court previously set forth the general background of this
copyright infringement suit brought by Plaintiff Live Face on
Web, LLC (“LFOW”) against then Defendants
MegapreventionRx, LLC and Mark Guerra. The Amended Complaint
alleges facts consistent with those in the Court's prior
Opinion, but with further detail, and defunct entity
MegapreventionRx has been dropped from the suit.
develops computer software. (Am. Compl. ¶ 9.) The
copyrighted software at issue allows a website to display a
video spokesperson who walks and talks on the computer
screen, directing a website visitor's attention to
certain aspects of the website. (Id. ¶ 10.)
Defendant's website, www.megapreventionrx.com, allegedly
has this video spokesperson functionality. (Id.
¶ 18-20.) “[I]n order to display the web
spokesperson video on Defendant's website, Defendant
[allegedly] used, copied, and distributed” LFOW's
software without permission. (Id. ¶ 21.)
Amended Complaint alleges that each time a person visits
Defendant's website and views the video spokesperson, a
separate violation of LFOW's copyright occurs.
(Id. ¶ 26.) LFOW explains, “[w]hen a web
browser is directed to a website linked to the LFOW Software,
the embedded HTML script tag is read by the web browser and
causes the automatic distribution of a copy of the LFOW
Software. The LFOW Software is automatically saved by the web
browser into cache, and/or a hard drive(s), and loaded into
computer memory and/or RAM (random access memory). As a
result of the distribution of the LFOW Software, the specific
web spokesperson video is automatically launched and
displayed . . . on the . . . website.” (Id.
¶ 14.) That is, in order for the video spokesperson to
appear on Defendant's website, the website causes a copy
of LFOW's copyrighted software code to be distributed to
each website visitor. (Id. ¶¶ 28-29.)
According to LFOW, this “volitional distribution of the
infringing version of the LFOW Software by Defendant to his
website visitors was seamless and transparent for the website
visitors, who were able to view the video spokesperson . . .
by virtue of receiving the copy of the infringing version of
the LFOW Software.” (Id. ¶ 29.) The
Amended Complaint asserts only one claim: “direct,
indirect and/or vicarious” copyright infringement.
(Id. ¶ 41.)
to Dismiss Standard
Rule of Civil Procedure 12(b)(6) provides that a court may
dismiss a complaint “for failure to state a claim upon
which relief can be granted.” In order to survive a
motion to dismiss, a complaint must allege facts that raise a
right to relief above the speculative level. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);
see also Fed.R.Civ.P. 8(a)(2). While a court must
accept as true all allegations in the plaintiff's
complaint, and view them in the light most favorable to the
plaintiff, Phillips v. County of Allegheny, 515 F.3d
224, 231 (3d Cir. 2008), a court is not required to accept
sweeping legal conclusions cast in the form of factual
allegations, unwarranted inferences, or unsupported
conclusions. Morse v. Lower Merion Sch. Dist., 132
F.3d 902, 906 (3d Cir. 1997). The complaint must state
sufficient facts to show that the legal allegations are not
simply possible, but plausible. Phillips, 515 F.3d
at 234. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556).
argues that the Amended Complaint fails to state a claim for
copyright infringement in that there are no allegations of
unlawful copying. “To establish infringement, two
elements must be proven: (1) ownership of a valid copyright,
and (2) copying of constituent elements of the work that are
original.” Feist Publications, Inc. v. Rural
Telephone Service Co., Inc., 499 U.S. 340, 361 (1991).
Only the second element is at issue in this motion.
“Copying is a shorthand reference to the act of
infringing any of the copyright owner's . . . exclusive
rights set forth at 17 U.S.C. § 106.” Dun
& Bradstreet Software Servs., Inc. v. Grace Consulting,
Inc., 307 F.3d 197, 206 (3d Cir. 2002) (internal
citation and quotation omitted). “The exclusive rights
implicated in this suit are the first three enumerated by
§ 106: the right ‘(1) to reproduce the copyrighted
work in copies . . .; (2) to prepare derivative works based
upon the copyrighted work; [and] (3) to distribute copies . .
. of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or
lending.'” Live Face on Web, LLC v. Emerson
Cleaners, Inc., 66 F.Supp.3d 551, 554 (D.N.J. 2014).
Court finds that LFOW has sufficiently pled a claim for
direct copyright infringement by alleging that Defendant's
website causes a copy of the LFOW Software to be
automatically downloaded to the website visitor's
computer in cache, memory and/or hard drive. (Am. Compl.
¶ 26.) See Emerson Cleaners, 66 F.Supp.3d at
555. “The specific technological mechanism by which
this is accomplished may be explored during discovery.”
Id. Besides sufficiently alleging that Defendant
reproduced the computer code, the Amended Complaint also
alleges that Defendant's website distributed copies of
the code to each of the website's visitors. (Am. Compl.
¶¶ 21, 26.) Whether Defendant's actions were
unauthorized or unlawful is not an appropriate issue at this
stage of the litigation.
course, individuals may be liable for copyright infringement.
Columbia Pictures Indus. v. Redd Horne,
Inc., 749 F.2d 154, 160 (3d Cir. 1984) (“An
officer or director of a corporation who knowingly
participates in the infringement can be held personally
liable, jointly and severally, with the corporate
Amended Complaint alleges:
Upon information and belief, Defendant Peter Guerra
(“Guerra”) is a resident of New Jersey and the
owner and/or managing member of MegapreventionRx and the
subject website(s) at issue here. Guerra is the owner and/or
chief executive officer of MegapreventionRx, and was
responsible for registering the subject website(s) at issue
in this action and controlling the content of, modification
to, and distribution of infringing source code from the
subject website(s) at issue ...